Privacy Or Property? Arizona Court Adopts Post-Mortem Right Of Publicity In Intra-Family Online Dispute

The right of publicity, i.e., the right not to have others appropriate your name or image for commercial purposes, is an odd duck. It was described by Professor Prosser in 1960, and later in the Restatement of Torts, as of one of four species of common law privacy rights intended to remedy the emotional injury to one's "seclusion" caused by breaches of privacy. By contrast, the Third Restatement of Unfair Competition in 1995, in describing the right, jettisoned privacy law's concern with emotional harm, and focused on the commercial value of one's identity as a property right, in part by analogy to trademark law.

Does this arcane historical distinction still matter? Yes, especially if the rights being enforced are those of a deceased person. Privacy rights do not survive death, property rights do. Some states have passed statutes clarifying whether there is a post-mortem right of publicity. But for those states that have not, the question of whether the right of publicity survives death often depends in large part on whether it is seen as a privacy right or a property right.

"I Want to Die Like Dog"

This issue reached the Court of Appeals of Arizona in Reynolds v. Reynolds. In 2010, Robin Reynolds authored an article for Phoenix Woman online magazine entitled I Want to Die Like a Dog: Poignant Insights on Aging Gracefully. The article concerned Robin's efforts to care for her aging mother. Another article, posted after her mother's death, included a picture of the decedent with Robin. Robin's siblings, who were administering their mother's estate, attempted to have the articles removed on the grounds that they violated their mother's "right of publicity." During the probate proceedings, the issue was presented to the Superior Court, which dismissed the claim on the grounds that there was no post-mortem right of publicity in Arizona.

Post-Mortem Right of Publicity Recognized

On appeal, the Court of Appeals of Arizona first had to determine whether Arizona recognized any right of publicity at all, the issue apparently not having been...